Donald Sterling can’t catch a break these days. The disgraced owner of the Los Angeles Clippers lost another major battle in Court last month, with a Judge ruling in favor of his estranged wife and allowing her to move forward with the sale of the team. Sterling appealed the ruling in a final effort to block the sale, but his appeal was denied last week. After audio recordings leaked of Sterling spewing racist comments to his mistress sparked outrage throughout the sports world, it’s not surprising that the Court found Sterling’s wife to be a more credible witness than Sterling himself in matters related to Clipper’s business. The sale of the Clippers is expected to be the precursor to an impending divorce battle where the proceeds from the sale – reported to be roughly $2 billion – will likely be divided pursuant to California law.

In Georgia, it is not uncommon to see marital property ordered to be sold and the proceeds from the sale divided. Georgia Courts have the authority in a divorce case to order any asset to be sold for purposes of equitably dividing the proceeds. This is most commonly seen with the sale of a marital residence or other real estate that has value. It is less common for a Judge to order a business to be sold because often the business is an important stream of income for at least one of the parties – and potentially the source of income that the other party is making an alimony claim against. Therefore, Courts often consider it counterintuitive to order the sale of a business; and rather award the business to one spouse while compensating the other spouse for his or her marital interest in the business through some other asset or a monetary award.

Once the business is either sold or valued by the Court, the question becomes how the value (or the proceeds from the sale) will be divided between the parties. In Georgia, title is not relevant to the division of an asset, which means that even if one spouse was never listed as an owner, officer, or employee of the business, that spouse still has a marital interest in the value of the business because he or she is considered to have contributed to the marriage’s overall wealth in other ways.

Additionally, Georgia is an equitable division of property state – not an equal division state. This means that the Court does not have to divide the assets equally and is entitled to award a greater share of the marital property to one spouse over the other. Some of the factors that a Court can consider when deciding how to allocate marital assets are the duration of the marriage; any prior marriage of either party; the age, health, occupation, and employability of each party; and the contribution or services of each spouse to the marriage. Even the conduct of the parties can be taken into account in Georgia when dividing up the assets of the marriage. Thankfully for Donald Sterling, conduct will not play a role in his marital asset division because California is an equal division state and divides the assets of the marriage 50/50. Maybe that means he can spend less money on divorce attorneys; and more money on a much needed PR team.

Marc Anthony is going to have to start churning out more hits in order to keep up with the recent child support obligation he was ordered to pay. Dayanara Torres, Anthony’s first wife and the mother of his two oldest children, filed a child support modification action in November of 2013 seeking an increase in Anthony’s monthly child support payments. According to TMZ, Torres claimed she was living a meager lifestyle with the $13,000/month that Anthony was previously paying for their two children. The two faced off in Los Angeles County Superior Court last month, and the Court granted her request. The Order noted that Anthony earned more than $600,000 per month in 2014 and therefore, the Court increased his child support obligation to Torres to $26,000 per month.

Thankfully for Anthony, Jennifer Lopez was much more generous on the issue! Coincidentally, Anthony and Lopez just finalized the details associated with their 3 year divorce case last month as well. Despite the fact that Lopez will have custody of the couple’s two minor children the majority of the time, Lopez agreed that child support was not necessary.

These types of unusual child support obligations are not seen very often in Georgia, as Georgia’s child support laws were revised in 2007 to create strict guidelines for the calculation of the noncustodial parent’s obligation to support the minor child. The new guidelines use a “calculator” called a Child Support Worksheet to generate the monthly child support obligation based on the incomes of both parents and the monthly costs associated with the children’s basic needs such as health insurance premiums and work related childcare expenses. These numbers are imputed into the Child Support Worksheet and result in a presumptive child support number that the Court is required to adopt. The only way for the Court to deviate from the presumptive child support number is if the Court specifically finds that the presumptive child support amount is not in the child’s best interest, explains the reasons for deviating from that presumptive amount, and explains how the best interests of the child would be served by deviating from the presumptive amount required by the Child Support Worksheet.

Likewise, Georgia does not allow for one parent to be completely let off the hook regarding child support as Anthony appears to be in his divorce with J.Lo. Georgia Appellate Courts have repeatedly determined that child support waiver provisions in divorce decrees are void, noting that one parent cannot contract away the right of a child to be supported by the other parent. O.C.G.A. 19-7-2. The State of California doesn’t appear to be as strict, which is lucky for Marc Anthony. He’s going to need all the help he can get to keep up with the demands of Torres’ lifestyle!

The View doesn’t look too good right now for Sherri Shepherd. The typically upbeat co-host of the daytime talk show “The View” is currently dealing with not one, but two separate custody battles. It has been widely reported that Shepherd’s current husband, Lamar Sally, initiated legal proceedings on May 2, 2014 seeking full legal and physical custody of their unborn child, who is presently being carried by a surrogate. However, what flew under the radar until just recently was that Shepherd’s former husband, Jeffrey Tarpley, had already filed a request with the Los Angeles Superior Court in April of 2014 requesting that his custody arrangement with Shepherd be modified and the Court award him full custody of their 9 year old son, Jeffrey. Tarpley is claiming that Shepherd’s demanding professional life has “caused her to neglect Jeffrey and deprive him access to basic educational needs, a nurturing and loving environment, and care that Jeffrey so desperately needs”. Shepherd has filed a response contending that it is actually Tarpley that is the absentee parent.

Custody modifications are not uncommon in Georgia. The law recognizes that because children mature and develop in unforeseeable directions, an initial award of custody may not always remain the arrangement that promotes the best interests of the child. Changes that arise such as the addition of step-parents or the potential relocation of one parent can cause modification lawsuits to be just as contentious, if not more so, than the original divorce action.

Thankfully Georgia has parameters in place to prevent repetitive modification lawsuits, which can cause a significant amount of tension between parents. Georgia law requires that a parent can only seek a change to the custody arrangement in place if he or she can demonstrate that there has been a material change of circumstances affecting the welfare of the child since the last custody award was entered. O.C.G.A. 19-9-3. The change can be either a positive or a negative change, but must be material in order to justify the Court revisiting a previous order.

Because Tarpley cites to Shepherd’s “demanding professional life” as the cause of his lawsuit, his lawsuit would be subject to attack in Georgia. Shepherd began her role as permanent co-host on “The View” in 2007 and the parties didn’t divorce until 2009. Therefore, she presumably already had a demanding work schedule when the original order was entered regarding custody of Jeffrey. If the case were being litigated in Georgia, Tarpley would need to demonstrate that the professional demands and time requirements of Shepherd’s job are substantially different than they were in 2009, or Shepherd could seek a dismissal of the suit altogether.

Olympic bronze-medal winning ice skater Johnny Weir’s marriage to his attorney husband, Victor Varnov, is on thin ice. The pair wed in New York City on New Year’s Eve in 2011 in a civil ceremony. Weir filed for divorce in February of 2014 citing domestic difficulties, and not unlike his flamboyant shows on the ice, the demise of his marriage has seen its fair share of drama. So far the divorce has included accusations of adultery, meddling in-laws, and even arguments over custody of the couple’s beloved dog! While many of these are typical issues dealt with in divorce cases, the dissolution of a homosexual marriage is a rapidly changing area of the law.

Thankfully for Weir and his husband, they aren’t seeking a divorce in Georgia, where there are currently very few legal protections for same sex couples. Georgia’s Constitutional Amendment 1 was passed in 2004 and makes it unconstitutional for the state to recognize gay marriage. Therefore, even if a same sex couple had been in a committed relationship for years or had been legally married in another state, their divorce petition would be denied as a matter of law. But this state of the law doesn’t change the reality that there are countless same sex couples living in Georgia. When same sex couples reach the end of their relationship, one or both of them can be in an extremely vulnerable position due to the lack of precedent regarding the division of their assets and/or debts.

Because there is virtually no legal precedent in Georgia for the dissolution of same sex relationships, attorneys often have to get creative and use equitable theories and principles that are more traditionally used in business litigation. For example, if the couple owned real estate together and both names are listed on the deed, either party could seek a partition of the property, at which point the Court would either apportion each party’s interest in the property, or possibly force the sale of the property so the proceeds can be divided. Same sex couples can try to accomplish the division of non-real estate assets and personal property through other quasi-contract legal theories, but these approaches are still relatively uncertain. Even the most creative legal approaches cannot allow for spousal support in a situation where one partner of a same sex relationship has been financially dependent on the other for a long period of time.

While there is very little clarity for same sex couples going through a separation in Georgia, recent high profile rulings on same sex marriages could mean new developments on the horizon for the state of the law. Thankfully for Weir and his husband, they are divorcing in New Jersey, where same sex marriages are recognized and their legal rights to divorce have already been established. Now they can focus on the truly important issues, like custody of their precious pooch! According to Court papers obtained by PEOPLE, Weir’s husband claims that although their beloved dog was purchased by Weir, it should be awarded to him because it was “a ‘make-up gift’ after he caught Weir sending inappropriate text messages to another man. A battle over the pup may be brewing, as Weir told People magazine last year that the dog was “the love of his life” and has been posting photographs of the dog on Instagram since the divorce proceedings began.

Gabrielle Union makes no bones about that the fact that although she is looking forward to her impending nuptials to NBA star Dwyane Wade, she and Wade will have an iron clad pre-nuptial agreement before she walks down the aisle. “The biggest difference between this and the last marriage [to NFL star Chris Howard] will be a prenup – at my insistence,” she candidly told Arsenio Hall during a recent interview, explaining that “I’ve got to protect my stuff.”

Pre-nuptial agreements can be a very sticky subject for couples planning to tie the knot; and for some folks, it’s a downright deal breaker. Let’s face it, planning a wedding is supposed to be blissful and romantic, and nothing kills the mood more than a contract that contemplates divorce. Regardless, pre-nuptial agreements can serve a very important function. In the unfortunate event of a divorce, they streamline the issues and can save both parties a lot of time, stress, and money.

In Georgia, pre-nuptial agreements generally protect the individual assets that each party owns at the time of the marriage, establish the parties’ respective rights to future assets that are accumulated during the marriage, and in some instances, establish or prohibit alimony rights. Pre-nuptial agreements cannot, however, address the issues of custody, visitation, and child support. Child support deals with the rights of the child and therefore, parents cannot predetermine the rights of another person. Additionally, custody and visitation issues are based on the best interest of the child involved and therefore, those arrangements must be determined at the time of the dispute since neither parent can predict what the circumstances will be at the time of a divorce.

Enforceability of pre-nuptial agreements in Georgia is an entirely different matter. Many people are willing to sign a pre-nup prior to the wedding, thinking that it will never actually see the light of day, and then seek to set it aside when a divorce is filed. In order to enforce the terms of a pre-nuptial agreement, Courts in Georgia will consider three things. First, the court will determine whether the agreement was obtained through fraud, duress or mistake, or through misrepresentation or nondisclosure of material facts (such as one party’s assets or income at the time of the marriage). Second, the Court will look to whether the agreement is unconscionable. Finally, the Court will determine whether the facts and circumstances have changed so much since the agreement was executed so as to make its enforcement unfair and unreasonable. Although these elements may seem daunting, Georgia has seen a significant movement towards Courts favoring the enforcement of pre-nuptial agreements over the past decade.

For some people, it’s not necessarily the protection of assets that’s the main goal, but simply the peace of mind that a pre-nuptial agreement brings when you’re marrying someone who may not be as financially savvy as you are. In Union’s case, her fiancé likely has plenty of his own assets after 10 seasons as an NBA guard. But as Union put it, “the reality is, I’ve never seen Dwyane balance a checkbook.” Not having to stress if her husband invests poorly or spends recklessly might just be the solution to making their marriage work!

Is that Required?

By Leslie O’Neal

Following up last month’s blog post (and the continuing realization that every month’s blog could be dedicated to the family law issues arising from the Kardashian relationships), the divorce proceedings between Khloe and Lamar are moving along quickly. Not even a month after Khloe filed for divorce from Lamar on the grounds of irreconcilable differences, the couple placed their 8,000 square foot home in Tarzana, California up for sale for a paltry $5.499 million.

It seems to be the commonplace in high profile divorces that the real estate assets are immediately sold. In Georgia, it is not necessarily required that the marital residence be sold as part of the divorce proceedings. Who is ultimately awarded the house can be an emotional issue during divorce cases, particularly if there are children involved. Often the party to be awarded primary custody of the children will also want to be awarded the home so that the children are not uprooted from their environment in the middle of what is already a difficult time of transition for them. Even if there aren’t minor children involved, sometimes the home has sentimental value to one party such that he or she wants to keep it at the conclusion of the case rather than sell it.

Generally, in order to be awarded the marital residence at the conclusion of a divorce case, three things have to happen. First, the spouse being awarded the house has to have the ability to pay the monthly mortgage premium with his/her own income (which can include any spousal or child support he or she is awarded). Second, if the other party’s name is on the mortgage, the spouse being awarded the house has to be able to refinance the mortgage within a reasonable period of time in order to remove the other spouse’s name from that debt. Finally, if there is any equity in the home, the spouse being awarded the home must be able to cash out the other spouse for his/her equitable share of that equity, either through the refinance process or by offsetting the equity in the home with another asset. Generally if any of these three criteria cannot be accomplished by the party desiring to keep the marital residence, the house will ultimately be placed on the market for sale, either by agreement of the parties or by Court Order.

Even if the parties agree that the house needs to be sold, the specifics of the sale can be difficult to maneuver, particularly if the divorce case is contentious. Commonly, guidelines are established either by agreement or Court order which determine who the real estate agent will be, what the listing price will be, what offers or counter-offers must be accepted, what offers or counter-offers may be rejected, and how the closing costs will be paid. It is not uncommon for the agreement outlining the parameters for the sale of the house to remain confidential rather than being filed with the Court; because if it becomes public record, the buyer’s agent could see the parameters and make the lowest possible offer that the sellers are required to accept.

Given that Khloe and Lamar’s marriage only lasted 4 years and didn’t result in any children, neither party likely had an emotional attachment to the house and they presumably reached a mutual agreement to sell it without being ordered to do so.

Why Didn’t Khloe Seek a Fault Grounds Divorce?

By Leslie O’Neal

It is becoming apparent that every monthly celebrity blog could be devoted to legal questions arising from the Kardashian family. The most recent marriage to bite the dust is that of third daughter, Khloe, and her NBA player husband, Lamar Odom. The two were famously married in September of 2009 after knowing each other for only one month. However, despite their brief courtship, the two were commonly seen as the most stable and relatable of the Kardashian couples. They documented their failed attempts to conceive and Lamar’s NBA struggles on their two-season reality show, “Khloe & Lamar”.

Unfortunately, the marriage began to unravel in 2013 with rumors swirling that Lamar had relapsed into drug addiction, had moved out of the home the coupled shared, and was repeatedly unfaithful. Khloe finally filed for divorce on December 13, 2013, citing irreconcilable differences. With the rumor mill constantly swirling about Lamar’s poor conduct, why didn’t Khloe seek a fault grounds divorce?

In Georgia, there must be a statutorily recognized reason for a divorce. Historically, that included one person being “at fault” for the demise of the marriage. The twelve fault grounds for a divorce in Georgia are 1) intermarriage by persons within the prohibited degrees of affinity, 2) mental incapacity at the time of the marriage, 3) impotency at the time of the marriage, 4) fraud or duress in obtaining the marriage, 5) pregnancy of the wife by a man other than husband, at the time of the marriage, unknown by the husband, 6) adultery by either of the parties after marriage, 7) willful and continued desertion by either of the parties for the term of one year, 8) the conviction of either party for an offense involving moral turpitude and under which he or she is sentenced to imprisonment for more than two years, 9) habitual intoxication, 10) cruel treatment, 11) incurable mental illness, and 12) habitual drug addiction.

However, in 1973, Georgia introduced the “no fault” grounds of irreconcilable differences. Irreconcilable differences is by far the most commonly used grounds for seeking a divorce in Georgia. It is a common misconception that the “no fault” option means that conduct is not relevant to the issues in the divorce. That is not the case. The “no fault” option in Georgia simply means that either spouse is entitled to request a divorce without having to prove that the other spouse did something wrong. One is entitled to a divorce by simply stating under oath that the marriage is irretrievably broken with no hope of reconciliation.

There are a number of reasons that Khloe would not benefit from seeking a fault grounds divorce from Lamar. First, it draws more attention to the divorce proceedings because she would have to prove the misconduct alleged. Additionally, proving misconduct on Lamar’s part may not have much of an effect on the issues of the divorce because the couple reportedly signed a Pre-Nuptial Agreement governing alimony and division of assets. They also do not have to litigate custody or visitation because they did not have any children together.

Why Not a Divorce?

By Leslie O’Neal

Despite claiming that her marriage is irretrievably broken, former “Medicine Woman” star Jane Seymour appears to be in no real hurry to end her marriage to her husband of 20 years, James Keach. On Monday, October 28, Seymour filed legal separation proceedings in L.A. County Superior Court. According to her pleadings obtained by E! News, she identified the date of separation as “TBD”. Seymour and her husband first announced back in April that they were separated and had been for several months. This begs the question, if Seymour believes the marriage is irretrievably broken, what is the benefit of filing a legal separation instead of a divorce?

In Georgia, either spouse is entitled to pursue a legal separation action without formally requesting that the marriage be dissolved. However, there are very few practical benefits to pursuing legal separation. A legal separation lawsuit is often just perceived as delaying the inevitable because if the proceeding is pending and either party separately files for divorce, the entire legal separation proceeding is subject to immediate dismissal. In other words, the parties must essentially start over, without regard to the time, money, and emotional energy they have applied to legal separation lawsuit.

One common reason that legal separation lawsuits are pursued as a short term solution is if the party initiating the action does not yet meet Georgia’s basic jurisdictional requirement for seeking a divorce. Georgia law requires that the party initiating a divorce case be a resident of the state of Georgia for at least six (6) months preceding the filing of the divorce complaint, whereas legal separation lawsuits do not have this same requirement. In some cases, the parties cannot meet this six (6) month threshold before they are in need of relief from the Court, often in the form of a temporary order governing child support, spousal support, parenting time, and/or exclusive use and possession of the marital home.

There are a few limited circumstances where a formal, legal separation might be an attractive long term option. For example, a couple who is legally separated can still file their tax returns jointly. Additionally, one spouse can continue to be eligible for the other spouse’s health insurance even if there is a legal separation. And of course, some couples do not believe in divorce for personal or religious reasons, and would rather not ever pursue a complete dissolution of their marriage. If both parties are content with a legal separation as a long term solution, they can negotiate or litigate nearly all issues that are traditionally negotiated and litigated in a divorce case.

Many of these circumstances presume that both parties are content with staying married to one another, at least on paper. However, given the current popularity of dating websites and the relative ease in communicating these days, it’s highly unusual to find a situation where neither party desires to move on with his or her life and possibly remarry. And while it remains unclear whether Jane Seymour and her husband will ever file for divorce; given that Seymour is a former Bond girl, she’ll probably be tempted to get back on the dating scene eventually.

What Happens to the Teenage Minors?

By Leslie O’Neal

For those who follow the Kardashian clan even casually, it does not come as a shock to hear that Kris and Bruce Jenner have finally announced their separation. Their marital woes were often fodder for their reality TV show, “Keeping Up With the Kardashians.” While the Jenner’s will likely have much to sort out in terms of dividing the assets and interests they’ve accumulated over their 20 year marriage, it will be interesting to see how they handle custody of their two independent and outspoken teenage daughters, Kendall and Kylie.

It is a common misconception in Georgia that once a minor child reaches a certain age, he/she has the freedom to choose which parent he/she wants to live with. However, it is not quite that simple. In Georgia, although a minor that has reached the age of 14 years old has the right to convey his or her desires about which parent he or she wants to live with, the Court still has the ultimate authority to determine that the parent selected is not in the best interests of the child. Minors who are 11 years of age but not yet 14 also have the option of conveying their parental preference to the Court, though their desires are given even less weight and the Judge has the discretion to disregard the child’s preference entirely. In other words, the child’s preference is not binding on the Court, and the Court is free to determine that the child’s preference is not appropriate based on the circumstances of the case.

Sometimes a child’s preference is given in the context of a modification of custody lawsuit. This occurs when the parties and the child already have a visitation Order in place, and the child wishes to modify the status quo and move to the other parent’s residence. If the child is between 11 and 14, the child’s desire to move to the other parent’s home does not automatically allow for a modification of custody lawsuit without some other change having occurred. However, if the child is 14 years or older and desires to move to the other parent’s home, that desire is enough in and of itself to trigger a modification of custody lawsuit.

Even after a child’s formal preference is given, the parties are still required to follow the previous Court Order until the Court makes a new custody determination unless the parties can reach an agreement to the contrary. Just last month, the Georgia Supreme Court affirmed a trial court’s decision to incarcerate a Mother for keeping her 15-year-old daughter away from her ex-husband. Carlson v. Carlson, 2013 WL 5303253 (2013). The teenage daughter had signed an Affidavit of Election stating a clear desire to live with her mother. Id. However, the Court rightfully noted that neither party, nor the child, has the authority to modify a visitation Order that has been issued by the Court without the agreement of the other party or the Court’s approval. Id. Therefore, even in a situation like the Jenners’, with two teenage daughters who are driving and independent, the parties can still be expected to enforce a visitation schedule that has been Ordered by a Court.

Bethenny Frankel began her rise to celebrity status as a regular on the Real Housewives of New York, where she was a cast member on Seasons 1 through 3. Frankel quickly became a celebrity in her own right as a business mogul with the launch of her Skinny Girl products, her self-help books, her exercise DVDs, and her own talk show. But despite her success as an entrepreneur, Frankel’s personal life has been far from glamorous in recent months.

Frankel married entertainment executive Jason Hoppy on March 28, 2010, while she was seven months pregnant with their daughter, Bryn. The marriage quickly deteriorated after she and her husband documented their private lives on the reality show, “Bethenny Ever After.” Bethenny filed for divorce in January of 2013 and shortly thereafter, Hoppy filed an aggressive response. Surprisingly, the divorce has not centered on the appraisal and division of Bethenny’s multi-million dollar business enterprises, but rather on who will be granted custody of their 3 year old daughter, Bryn, with each party requesting primary physical custody.

In Georgia, there are over 17 factors that Courts will consider when determining what custodial arrangement is in the best interest of the child. Those factors include the love, affection, bonding, and emotional ties existing between each parent and the child, the love, affection, bonding, and emotional ties existing between the child and his or her siblings, half siblings, and stepsiblings and the residence of such other children, each parent’s knowledge and familiarity of the child and the child’s needs, the capacity and disposition of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care, the home environment of each parent, the mental and physical health of each parent, each parent’s involvement, or lack thereof, in the child’s educational, social, and extracurricular activities, each parent’s employment schedule and the related flexibility or limitations, and the willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent. Children that have reached the age of 11 in Georgia have the right to convey their desire as to which parent should have primary physical custody to the Court.

Bethenny’s custody battle has become increasingly bitter and she recently admitted to Nightline that she is going through a “brutal, brutal time”. Because custody cases can often reach a heightened degree of tension, one of the most difficult factors for determining the best interest of the child can often be the willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent. It is not uncommon in acrimonious cases that either one or both of the parties find it virtually impossible to speak favorably about the other parent. However, speaking poorly about the other parent in the presence of the child is an indication that the parent is not putting the child’s interests before their own and is generally not tolerated by the Court. Hopefully for Bryn’s sake, her parents can find a way to reach a compromise soon.